Hill v Compass Ten Pty Ltd

Federal Court of Australia|2012-08-03|Before: Cowdroy J

REASONS FOR JUDGMENT 1 An interlocutory judgment was delivered in this matter on 17 July 2012: see Hill v Compass Ten Pty Ltd [2012] FCA 761 ('the previous decision'). As a result of this decision, which sought to strike out certain pleadings and to obtain summary judgment in favour of the respondent ('Compass Ten'), the Court made certain orders which partially disposed of the claim of the applicant ('Mr Hill'). 2 Pursuant to r 4.12 of the Federal Court Rules 2011 ('the Rules'), Mr Hill was referred at the onset of the proceedings to a lawyer for legal assistance. Subsequently Mr Hill received the benefit of counsel in preparing his statement of claim. However, prior to the hearing counsel for Mr Hill sought to withdraw and pursuant to r 4.15 of the Rules was granted permission by a registrar of this Court to withdraw. Accordingly, Mr Hill conducted this hearing without representation. 3 Mr Hill was employed by Compass Ten. The director of Compass Ten is Ms Torregrosa ('the Director'). The relevant background facts are stated in the previous decision and will not be repeated. 4 The issues remaining in the proceedings centre on two questions, namely whether Mr Hill lodged a complaint with the Wingecarribee Shire Council ('the Council') in respect of building work being undertaken at the premises where Compass Ten operates its business ('Sunshine Lodge') and if so whether such complaint constitutes a complaint within the meaning of s 772(1)(e) of the Fair Work Act 2009 (Cth) ('the FW Act'); secondly whether Compass Ten breached Mr Hill's contract of employment. 5 Following the delivery of the previous decision, the hearing continued to consider the two remaining claims by Mr Hill. The Court will first consider whether any complaint was made to the Council in respect of the building work being undertaken at Sunshine Lodge. 6 The evidence establishes that building work at Sunshine Lodge was conducted by the landlord of Sunshine Lodge, Mr Duffy. Mr Hill had a conversation with a building inspector concerning the adequacy of two lintels. There is no detailed evidence concerning the events but the affidavit of Matthew Duffy affirmed on 7 May 2012 establishes that the building works were ultimately carried out to the satisfaction of the Council. 7 There is no evidence that a complaint was ever made by Mr Hill and lodged with the Council in relation to the building works or in respect of any other matter. Had there been records produced by the Council, or by Mr Hill, of a complaint made to the Council which impacted upon his workplace and which required redress, then such action might constitute a 'complaint' within s 772(1)(e) of the FW Act. However the requirements of s 772(1)(e) of the FW Act are specific and the discussion which Mr Hill had with the Council inspector does not fall within this category. 8 In closing submissions, Mr Hill alleged that immediately prior to his dismissal he warned the Director by stating that he would be filing a complaint to the Department of Family and Community Services, Aging, Disability and Home Care ('the Department'). Mr Hill claimed that this was the impetus for his dismissal. 9 As stated in the previous judgment, the emails written by Mr Hill to the Department during the course of his employment do not constitute a complaint. Mr Hill has not provided any evidence of any additional oral complaint, nor has anyone from the Department testified to having received a complaint. Because of the absence of evidence, the Court finds that it cannot be satisfied that Mr Hill in fact made any complaint to the Department. 10 Accordingly the Court finds that both the claims raised by Mr Hill under the FW Act do not succeed. 11 The Court will now consider whether Mr Hill is entitled to succeed in respect of his claim that his employment contract was breached by Compass Ten. This will require a detailed consideration of the contractual provisions, his duties and of his conduct in fulfilling those duties.

CLAIM OF BREACH OF CONTRACT 12 Compass Ten alleges that Mr Hill was validly terminated for serious misconduct and therefore the contract was not breached. To establish this, Compass Ten must satisfy the Court that Mr Hill engaged in conduct which was serious misconduct. 13 As stated in the previous judgment, the contract between Mr Hill and Compass Ten ('the Contract') provided for termination 'immediately and without notice' in the event of the employee being considered to have committed serious misconduct or a serious breach of the contract. Serious misconduct is relevantly defined in the contract as: Without limitation… dishonesty, fraud, assault…or failing to comply with any of [Compass Ten's] policies or procedures from time to time. 14 Furthermore, the Court must consider whether the conduct engaged in warranted dismissal: Applicant v Microsoft Australia [2012] FWA 3353 at [107]; Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 at [17]. A valid dismissal will require the employer to have a sound, defensible or well-founded reason for dismissing the employee: Annetta v Ansett Australia (2000) 98 IR 233 at [9]; Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373. 15 A variety of allegations was made by Compass Ten against Mr Hill in relation to his conduct during his employment. Not all of the allegations have been proven on the balance of probabilities. However, it is only necessary for the Court to consider whether the allegations which were proven were sufficient to found a solid, defensible or well-founded reason for dismissing him. Therefore, in this judgment the Court will only canvass those issues which the Court found to be proved. 16 The Court will first address the question of the qualifications which Mr Hill acknowledged were necessary for the position as stated in the job advertisement, namely, a first aid certificate. 17 The advertisement for the position of manager relevantly stated: A First Aid Certificate is required and some medical background is an advantage but not a requirement. 18 It should be noted that concerns regarding Mr Hill's first aid certificate did not arise until after Mr Hill was terminated. However, Concut Pty Ltd v Worrell (2000) 176 ALR 693 at [27] and Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 371 are clear authorities for the principle that if an employer terminates an employee for misconduct on certain grounds and another ground of misconduct is subsequently discovered, the fact that the employer is not aware of such misconduct while the employee is employed is not relevant. The employer may subsequently raise such misconduct in support of a decision to terminate the employee.

DID MR HILL HOLD THE REQUISITE FIRST AID QUALIFICATIONS? 19 Mr Hill was extensively cross-examined on 17 and 18 July 2012 with respect to various issues. It was put to Mr Hill that when filling out his employment application to Compass Ten, he knew that a first aid qualification was a requirement for the position. Mr Hill acknowledged such fact. Mr Hill also acknowledged that the certificate which he forwarded in support of his employment application had been issued to his son and stated that he attached it by mistake. It was then drawn to Mr Hill's attention that the name displayed on the first aid certificate was Simon Peter Christopher Hill and that in his personal details form submitted to Compass Ten he described his name as 'PAUL (Peter Simon Christopher) HILL'. 20 It was put to Mr Hill that he had deliberately inserted the names 'Peter Simon Christopher' after his first name 'Paul' in an attempt to deceive Compass Ten. Mr Hill denied such suggestion. However he admitted that the name on his drivers licence and his record for the Tax Department does not contain the word 'Peter' nor was he referred to as 'Peter' during his employment by Compass Ten. However Mr Hill maintained that his friends called him 'Peter', and that is the reason he included the name in the application form. 21 During his evidence Mr Hill provided varying reasons for the inclusion of his son's certificate in his application. At first, Mr Hill stated that he had a valid first aid certificate but could not find it. After questioning, Mr Hill stated that he attended first aid training with his son and he thought that he was therefore entitled to a first aid certificate. Mr Hill claimed that he did not intend to mislead Compass Ten. 22 Mr Hill was further cross-examined on this point: MS ANDELMAN: And you knew that you did not have a first aid certificate when you applied for this job, didn't you?---No, I didn't. I thought I did. I read this, read obviously and because I have no recollection Paul Simon Christopher Hill, obviously I saw the Peter and thought they've got my name wrong which is why I've written Peter Simon Christopher because that is frequently the name that I use. So, what you're saying Mr Hill is that because of looking at the first aid certificate you put your name down on the first page as Paul Peter Simon Christopher Hill, that's what you just said, is that correct?---I put Peter Simon in the middle to explain what I thought was an error, clerical error on the certificate and that I frequently use the name Peter. I did not read Simon Peter Christopher Hill to the best of my recollection. I read Peter Simon Christopher Hill. Now, if I read Peter Simon Christopher Hill then and that happens a lot - - - MS ANDELMAN: So?--- - - - on such a name as this that - and I am only suggesting that I think I did that. I have no recollection of doing this. I have no specific reference of sitting down and adding all of this in. I'm trying to explain to you what I believe was the mistake and how it occurred but it was a mistake. It is not my certificate and I'm not saying it is.

Finding on this issue 23 It is apparent that Mr Hill did not undertake any first aid qualification himself, but instead assisted his son. His claim that he held a valid certificate when he applied to Compass Ten must be rejected. 24 The Court is satisfied that Mr Hill knew, at the time he made his application for the job, that he did not hold the qualification because he had not undergone the relevant training. He therefore must have been aware at the time he provided the certificate that it did not relate to him for the reason that he had not undergone the training. The Court now turns its consideration to the other evidence on this issue. 25 Other elements of Mr Hill's conduct reveal that his submission of his son's first aid certificate with his employment application was more than an innocent mistake. In addition to attaching his purported first aid certificate, Mr Hill wrote in support for his application for employment: 'First Aid Certified with renewal 2010 to 2013 (attached)'. The Certificate relevantly states: Allens Training Pty Ltd Statement of Attainment This is a statement that Simon Peter Christopher Hill has attained Apply First Aid HLTFA301B Issue Date: 23/10/2010 Expiry Date: 23/10/2013 26 Mr Hill acknowledged that he had read the certificate before submitting his application to Compass Ten. 27 The Court finds it inconceivable, bearing in mind this history, that Mr Hill made such statements by mistake. The Court finds that Mr Hill deliberately attached his son's first aid certificate. Mr Hill acknowledged that he 'did not seek certification', which clearly demonstrates that he knew that he was not entitled to a first aid certificate. 28 Furthermore, the Court finds that Mr Hill changed the name on his application to more closely resemble the name on the first aid certificate (i.e. his son's name). This is based on the fact that no legal documents belonging to Mr Hill include the name 'Peter' and nobody at Sunshine Lodge ever referred to him as 'Peter'. The Court is satisfied that the name was changed to deliberately to mislead Compass Ten. The fact is, as Mr Hill well knew when he filled out the application form, he had not undergone the training and was not eligible to hold any first aid certificate. It follows that the statement that his qualification was current until 2013 was false. 29 The terms of the written contact entered into by the parties provided for a three month trial period from the date of commencement of employment for Mr Hill. Within that period, the contract provided that Mr Hill would be expected to have obtained the relevant first aid certificate and also be licensed under the provisions of the Youth and Community Services Act 1973 (NSW) ('the Youth Act') and to conform with the license conditions. 30 The Department of Youth and Community Services (NSW) supervises the operation of premises such as Sunshine Lodge. The licence condition requires that at least one member of staff on duty hold qualifications in the administration of first aid. 31 Such requirement is specified within a regulation of the Youth Act, which was made by virtue of s 32(2)(c) of such Act. Further, clause 12(7) of the Licensed Residential Centre Compliance Practice Guide, which is published by the Department pursuant to the Youth and Community Services Regulation 2005 (NSW) provides in part: There must be a suitable and fully stocked first aid kit at the licensed premises and at least one member of the staff on duty must hold qualifications (of a type approved by the Chief Executive) in the administration of first aid. 32 The requirement for an institution such as Compass Ten to employ staff who are suitably qualified for their tasks is a vital consideration. This is especially so in respect of the manager, where the duties involve dealing with people who suffer disabilities, many of whom require frequent medical attention. The Court therefore accepts the submission of Compass Ten that the position would not have been offered to Mr Hill had Compass Ten been aware of the true facts, namely that Mr Hill did not hold the qualification which the job advertisement had stated was a requirement. 33 There is nothing to suggest from the evidence that Mr Hill would have attempted to obtain a valid first aid qualification during his period of employment with Compass Ten. In his application for employment Mr Hill represented to Compass Ten that his first aid certificate was valid until 2013. During the two months that he was employed, he did not apply for first aid training. In fact, up until the hearing he continued to maintain that he had a valid first aid certificate during his period of employment. 34 Given the importance of holding a valid first aid certificate to the responsibilities of Mr Hill's position as a manager of Sunshine Lodge and given the statutory licensing requirements concerning first aid trained staff, the Court concludes that such deception would have constituted a well-founded reason for Compass Ten to terminate Mr Hill's employment summarily. 35 The Court will now address the other issues relied upon by Compass Ten as grounds for Mr Hill's dismissal.

DUTIES RELATING TO MEDICAL CARE OF RESIDENTS 36 Several days before Mr Hill's employment with Compass Ten commenced, Mr Hill was provided with a sample contract (referred to above as the draft contract) together with a detailed list of the manager's responsibilities. Such list, described as the 'Manager routine at Sunshine Lodge & Cottages as at 01/08/2011' contained virtually an hour by hour list of duties. One requirement specified for Monday to Friday at 11.45 am states: 'Supervise giving of medication'.

Checking Webster Packs 37 The Court was provided with a daily record maintained by the previous manager which contained a detailed list of medication provided weekly to residents who were in need of medication. Mr Hill was provided with induction and training from 18 to 31 August 2011 by Ms Doyle who was the retiring manager. A list of documents entitled 'Medical' was provided to Mr Hill. Mr Hill acknowledged that the instructions on this list formed part of his duties. 38 One of the specified duties was to distribute Webster Packs. A Webster Pack is a container for tablets which are prepared by a pharmacist and intended to be administered to the patients at regular intervals such as morning, lunch, afternoon and dinner. Accordingly a system of control and a system of giving the medication to the patients existed and Sunshine Lodge maintained a record of the patients to whom such medication was administered. 39 It was the responsibility of the manger to collect the Webster Packs from the chemist and to ensure that such medications were distributed to the relevant patient. The staff member of Sunshine Lodge who gave the mediation to the patient was required to sign a record which recorded the administration of such medicine, and it was the function of the manger to ensure that the record was properly maintained. Mr Hill acknowledged that it was his responsibility to make certain that the medication was distributed. He denied that it was his responsibility to ensure that the record was signed. 40 The instructions that Mr Hill received relevantly stated: Also check the Webster's [sic] you are replacing for residents who have not received their medications and check sign off sheet, you will have to ask staff why the resident didn't receive their meds. [emphasis added]

Updating the medical diary and arranging transport 41 Another record maintained at Sunshine Lodge was a medical diary. Mr Hill acknowledged that the maintenance of such diary was one of the manager's duties. Such diary recorded the making of specialist appointments recommended by the doctor who regularly visited Sunshine Lodge, Dr Sam Rewais. Mr Hill acknowledged that it was his responsibility to make medical appointments with specialists for patients where they were referred for specialist treatment and it was also a requirement of his position that he organise transportation for such purpose. 42 It was put to Mr Hill that whilst he was engaged he made no medical appointments with medical specialists. However during the period of Mr Hill's employment Dr Rewais had provided referrals for three patients, namely Mr Green on 15 September 2011, Mr O'Connell on 20 September 2011 and Ms Schoffel on 29 September 2011, each of whom had serious medial concerns. 43 Mr Hill responded by stating that having consulted with the patients, Dr Rewais would inform him as to the degree of urgency with which the specialist appointments would need to be made. Mr Hill further submitted that these patients were suffering from chronic conditions and thus arranging specialist appointments was a low priority. He therefore decided to prioritise other responsibilities over the scheduling of the appointments. 44 Dr Rewais provided testimony in which he agreed that the above patients were suffering from chronic conditions and thus the arranging of their specialist appointments was not absolutely urgent. Had it been urgent, Dr Rewais said that he would have made the appointment with the specialist immediately after the consultation. However, Dr Rewais also stated that he certainly would have expected the specialist appointments to have been booked after a reasonably short period of time; perhaps a matter of a week or two. 45 Another medical diary was kept by Sunshine Lodge recording the name of the drug, the amount of the drug and notes in respect of each patient who received such medication at the clinic. Comprehensive entries were included every week and for the month of August 2011 entries were recorded on 4, 11, 18 and 25 August; 1 and 7 September. Mr Hill filled in an entry on the sheet on 13 September but did not include the dosage of medication provided to the patients David Grimson and William Reynolds. However, Mr Hill maintained that no injections were administered to those patients. 46 The next record in the diary should have been for the week of 20 September. After this date no record was maintained in the record sheets. However, Mr Hill maintained that he kept such records electronically because Dr Rewais requested him to use electronic recording. Mr Hill acknowledged that no written records appeared from 20 September through to October; claiming that the Ipad upon which he was keeping the records did not work. He denied that he refused to enter information manually into the required documentation. 47 Mr Hill stated that copies of the electronic records were printed out and placed in the office in Sunshine Lodge from which he was working. The Director stated that she had searched, but was not able to find such records. 48 Dr Rewais testified that although he generally viewed the keeping of electronic records as preferable to the current system that was in place at Sunshine Lodge, he could not be sure that he had explicitly told Mr Hill to implement an electronic records system. He acknowledged that it may also have been possible that Mr Hill proposed this system to Dr Rewais. 49 Mr Hill was asked whether he obtained permission from the Director to change such system. The following exchange occurred: HIS HONOUR: Did you discuss that change with the Director before you did so?---Yes, your Honour. And did you receive her approval to change the system to an electronic system?---Sir, the comment I received was Did you?--- "Do whatever you No, the question is did you? Did you discuss it with her and receive her approval?---Specifically on this matter, no, sir. 50 Mr Hill therefore admitted that 'there was no specific permission to use an electronic system'. The Director denied giving permission to Mr Hill to keep such records electronically or implement a new system of record keeping. 51 An instruction contained in Mr Hill's duties is as follows: Medical diary needs to be kept up-to-date, transfer the injection list from the fortnight before to your new page, add anyone that needs to see Dr Sam, write a list a [sic: and] put up on the board for residents to see prior to Thursdays [sic] clinic. 52 Following argument, Mr Hill provided copies of some records reproduced from the Ipad, which appear to have been made in the period following 20 September 2011. The Court is unable to determine whether these records now give Sunshine Lodge a complete record of the administration of medication to patients during the period of Mr Hill's employment.

Recording the administration of Warfarin 53 Warfarin, a medication, was also administered to certain patients. Compass Ten alleged that administration of Warfarin was required to be recorded in a book kept in Sunshine Lodge. The dosage, the date and the patient to whom it was administered was required to be recorded as Mr Hill acknowledged. 54 Mr Hill claimed that he maintained the record of the Warfarin administration in his electronic system 'that I worked out with Dr Sam'. The evidence is as follows: What's the electronic system?---Well, it was placed into a spreadsheet that was sent to Dr Sam, and we kept the spreadsheet updated between the two of us. Or at least, that was the plan. Of course, it never got there. You say you sent a spreadsheet to Dr Sam?---I believe I sent one. But that was the plan, yes. We were working on the new system. HIS HONOUR: Well, in case someone from the Department wished to inspect the records of the centre ?---Yes. which record would they have access to to see that in fact in those three-week period there was Warfarin administered to Mr O'Neill?---That would be on their - I can't remember what it's called, sir, but it is the thing that is on the back of the Websters Paks, the dosages listed there. No. What I'm asking you is, where was the record kept, if it was kept electronically, and if an officer of the Department who is doing a check on the operation of this Sunshine Lodge ?---Yes. wanted to see in that three-week period ?---Yes. where would they go? Where was the record kept?---They would have come to me. It was kept And ?--- in the office in the clinic, and Where? But where in the office of the clinic?---Printed out in a - in a folder, your Honour. And where's the folder?---I'm sorry, your Honour, it is in the possession of Sunshine Lodge. 55 Dr Rewais could not recall whether he gave permission to Mr Hill to keep the records pertaining to Warfarin electronically. The Court is unable to determine if complete records for the administration of Warfarin exist. 56 Again Mr Hill claimed that he had permission from the Director to keep the records electronically. The Director said she did not give Mr Hill permission to alter the record keeping method.

Findings on these issues 57 The evidence establishes that in respect of at least three of the residents no attempt was made by Mr Hill to arrange specialist appointments even though the medical officer had required such patients to be referred for specialist treatment. Mr Hill did acknowledge that one of his duties was to arrange transport. Although it appears that Mr Hill had some latitude in determining when he should complete the task of scheduling the appointments, that did not extend to not scheduling the appointments at all. This was a fundamental failure to carry out his responsibilities. 58 Mr Hill also sought, in his defence, to claim that the record was simply 'an administrative tool'. In cross-examination by Mr Hill of Ms Torregrosa the following exchange occurred: So is it not correct then that this really is simply an administrative tool to know when appointments have been made? This has nothing to do with their medical ?---It's record keeping. 59 Such cross-examination confirms the lack of insight which Mr Hill had into the purpose of his duty and the importance of ensuring that specialist medical appointments were booked on behalf of the residents. 60 From the evidence, it is clear that a system had been implemented at Sunshine Lodge for the keeping of medical records. This system required Mr Hill to manually record the relevant details pertaining to administration of medication and medical appointments in the appropriate diary and folder. It is also clear that it was the Director's expectation that Mr Hill follow this system. 61 Mr Hill did not follow this system. Instead, Mr Hill attempted to implement an electronic system for keeping records. The Court finds that this was done without consultation with the Director. The Director did not give Mr Hill permission to implement any alternative means of retaining the relevant documentation. As a consequence, important medical documentation was missing or incomplete. 62 With regard to the recording of medication, it may be the case that no injections were given to Mr Grimson and Mr Reynolds on that day. However, the diary was used for the recording of all medical treatment provided to those patients. The record does not show any of the medical treatment provided to those patients on that day. 63 Whether the current record keeping system was sub-optimal or whether Mr Hill's electronic system was an improvement is beside the point. Mr Hill and the Director never discussed any changes to the existing system. Mr Hill unilaterally decided to change the system. Mr Hill's decision to ignore the instructions of his superior on this point without consulting with her amounts to wilful disobedience of the Director's instruction.

ATTENDING TRAINING SEMINARS 64 An organisation known as the Disability Trust scheduled a training seminar for 13 and 14 October 2011. The training was directed to dealing with persons who had 'challenging' or aggressive behaviour; or as Mr Hill agreed 'difficult behaviours'. Mr Hill acknowledged that he was required to attend the training course as requested by the Director on or about 21 September. Mr Hill maintained that the word 'required' was not used, rather he was asked to attend. Mr Hill essentially denied that the Director gave him an instruction to attend the training; she merely suggested or recommended it. Although he attended on 13 October, Mr Hill failed to attend the second day of training on 14 October. 65 An email sent from the Director to Mr Hill on 21 September 2011 relevantly states: The training needs to be attended by the same person on both days. As discussed, it is more beneficial for you to do the training as you are on premise full time. It is a highly recommended course and I think it is good timing they are offering it now. I will attend clinic for you that week and arrange for Eva to be in child care on the Friday so I can come into the office. Please lock it in your diary - 13 & 14 October 2011 (Thur & Fri). 66 Mr Hill gave various reasons for his non-attendance at the training on 14 October. He said that on the night before 14 October he decided that it was more important to arrange transport for residents to attend a dental appointment, as this had not yet been done. Furthermore, Mr Hill said it was raining on 14 October and his wife, who was engaged in some unspecified capacity, was to take them. Mr Hill denied however in subsequent evidence that it was because of rain that he decided to assist in taking the patients to the dentist, observing: It was because they had to go to their appointments and transport wasn't booked, and the lodge was in chaos, as the respondent has said. 67 It was Mr Hill's duty to arrange transport for patients to attend medical and dental appoints. He stated that two days prior to 14 October he realised that no transport was booked; and that he could not book transport two days before 14 October 'for 14 residents, or whatever the number is'. He also said to the Director on the morning of 14 October that he would not be able to attend the course because he had to look after the patients. Mr Hill also said in his evidence that he regarded his duties at the lodge as more important and that he did not require the training which was offered. 68 At the conclusion of the above evidence, it was put to Mr Hill that the reason why he decided not to attend training was because he learnt that the Department would be conducting a meeting at Sunshine Lodge on that day. Mr Hill then responded 'that is partly the reason, yes'.

Finding on this issue 69 The Court considers that the email clearly comprises an instruction from the Director to Mr Hill for Mr Hill to attend the training. This is seen particularly in the expression 'Please lock it in your diary'. The email also stipulates that the Director would replace Mr Hill for the day and thus there would be no reason that Mr Hill should not attend. 70 The Court finds that the failure of Mr Hill to attend the training on 14 October constituted a breach of the instruction provided to him by the Director to attend the training which was clearly designed to assist him in handling difficult patients. Mr Hill's statements that he thought the second day of training would have no relevance evidence Mr Hill's wilful disobedience of this instruction.

ADMINISTRATION OF FINANCIAL RECORDS 71 Compass Ten asserted that Mr Hill failed to provide financial security for residents by leaving them with their bankbooks and cards. Mr Hill was asked whether it was his duty to supervise such financial matters. Mr Hill stated that he did not know. 72 The administration of financial accounting for the residents had been conducted, until Mr Hill took over his responsibilities, by recording details of the amounts held to the credit of the resident, the amount being drawn out, the name of the resident, and a signature placed upon the record sheet by the person supervising such withdrawal at the Lodge. The record was written on a sheet photocopied from a template and the completed sheet was filed in a folder. 73 Mr Hill maintained that it was not his responsibility to keep such record but rather it was that of the Director. He pointed to an entry in an instruction which bore the words 'Refunds: Carolina'. 74 However, in the list of duties provided to him is the following: Sign money out on Monday and Thursday afternoon and update spreadsheet for the next time. 75 The Court finds it likely that the distribution of comfort money was the shared responsibility of both the Director and Mr Hill. Although Mr Hill was not solely responsible for the distribution of comfort money, he was expected to perform tasks in relation to it. 76 The records maintained by Mr Hill of the pocket money during his stay are, to say the least, wholly inadequate. He did not use the template provided for this purpose. He did not counter-sign a withdrawal for Mr Martin. 77 Further, Mr Hill made a decision to pay $15 comfort money to a resident, Ms Foster when the records show that she had a nil balance. Mr Hill responded by stating that Ms Foster would have been entitled to access her funds on the following day and claimed that the system was implemented merely for the convenience of Sunshine Lodge and there was nothing in any relevant statute or regulations that prevented him from giving her money a day before she became entitled to it.

Finding on this issue 78 The Court finds that an existing system was in place for the recording and distribution of comfort money. This required the staff member to give comfort money only if there was comfort money held to the credit of the resident at the relevant time and to sign the comfort money register to acknowledge that the money had been provided to the resident. During the period of Mr Hill's employment, the comfort money register shows a number of instances where Mr Hill failed to comply with these requirements. Mr Hill seemed to lack appreciation of the need to allocate monies consistent with the patients' existing credit balances. It is irrelevant that statute or governmental regulations do not make regulation for such matters as claimed by Mr Hill. Mr Hill was told by his superior what was required and he refused to follow the required practice.

ADMINISTRATION OF TOBACCO RECORDS 79 Another of Mr Hill's duties was to record the provision of tobacco to residents. A form was kept for this purpose which was required to be completed weekly. After 29 August 2011 no record of tobacco usage was included in the record sheets. 80 Mr Hill primarily stated that he was not responsible for tobacco control. This submission is contradictory to an email sent by Mr Hill to the Director on 16 October 2011, where he states: While I do accept blame and will lift my game in the area of controls… 81 Nevertheless Mr Hill maintained that he did not fail to keep a record. Mr Hill maintained that the record was 'Somewhere in Sunshine Lodge'.

Finding on this issue 82 No adequate records have been produced. The Court acknowledges Mr Hill's evidence that the records are elsewhere in Sunshine Lodge. However, Compass Ten indicated it was not able to produce those records. Given the substantial shortcomings in the other aspects of record keeping which Mr Hill was responsible for, the Court finds it more likely than not that the records were not kept in accordance with Compass Ten's existing practice. The failure to maintain the records in the manner that Compass Ten required during his 10 weeks' engagement as manager constitutes a breach of his duties.

WARNINGS GIVEN TO MR HILL 83 On 11 October 2011 the Director informed Mr Hill by email that she had serious doubts concerning his ability and nominated three areas where she considered there were shortcomings, namely his communication, his failure to keep appointments and his failure to supervise the administration of medication. 84 On 14 October 2011 the Director forwarded a second email expressing her concern again complaining that Mr Hill failed in the following respects: 2.1 failing to provide financial security namely the credit cards and monies of the residents; 2.2 failing to follow up on police checks on staff being engaged at the Sunshine Lodge; 2.3 failure to arrange transport for the residents requiring transport for medical issues; 2.5 lack of control over medical procedures. 85 With regard to the latter the Director stated that all controls and procedures had been stopped by Mr Hill; that systems and other controls in the workplace were not being followed and that Sunshine Lodge had been thrown into chaos.

CONCLUSION 86 Mr Hill was engaged at the Lodge from 11 August 2011 until his termination on or about 26 October 2011. In that period numerous procedures which had existed for the accurate record keeping were disregarded. 87 It is possible that some of the individual instances of Mr Hill's conduct during his employment, particularly with regard to his failures to follow the instruction of the Director, may not have reasonably formed a basis for his dismissal if they were isolated incidents. However, the totality of Mr Hill's conduct as discussed above demonstrates a persistent unwillingness to follow the instructions of the Director and an unwillingness to follow the various procedures established by Compass Ten. This conduct was sufficient to constitute a well-founded reason for Compass Ten to summarily dismiss Mr Hill. 88 The Court finds that Compass Ten was entitled under the contract, and justified, in ordering Mr Hill's dismissal without further notification to him for his failure to comply with the policies and procedures established at Sunshine Lodge. Consequently, the application is dismissed. 89 Compass Ten indicated that should the Court give judgment in its favour, it would seek costs against Mr Hill. Although s 570 of the FW Act prohibits costs from being awarded unless the proceedings were instituted vexatiously or without reasonable costs, the Court will order parties to provide written submissions on whether costs should be awarded. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Youth and Community Services Act 1973(NSW)s 33(2)(c)

Youth and Community Services Regulation 2005(NSW)

Fair Work Act 2009(Cth)ss 570, 772(1)(e)

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